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TRAPPED IN BETWEEN MISOGYNY AND DOGMA: Noura’s case and the Dilemma of Sudan’s legal system

CAMPAIGN: #Justice For Noura #SaveNoura

On Thursday 10th May 2018, the 19-year-old Noura Hussein Hamad was sentenced to death by hanging at the “Omdurman Wasat” Criminal Court, for defending herself against the man who brutally raped her.
The man now deceased, according to Noura assumed to have a ‘marital right’ to sex, and used violence and force to that end after Noura was forced into an arranged marriage with the deceased by her family. As of Thursday, Noura Hussein Hamad was sentenced to death by hanging for defending herself against the man who brutally raped her.
Noura prevented his second attempt to rape her by stabbing him with a knife, which led to his death from the injuries. Noura, a secondary school graduate from Al Bagir town, south of Khartoum, was found guilty of pre-meditated murder under Article 130 of the Sudanese Criminal Act. Noura and her lawyers have only 15 days to appeal and prevent her execution.

The Strategic Initiative for Women in the Horn of Africa (SIHA) rejects the legal decision and problematizes the Sudan Personal Status Law, which paves the way for forced marriage, and the Sudan Criminal Act, which ignores marital rape and the right to self-defense as well as the mental health situation of the rape victim. In addition, the judgment has neglected the course of events previous to the act of Noura’s self-defense.
The wide activist #JusticeForNoura campaign protests against the fact that she has not been granted the right to self-defense against sexual assaults.

The course of events according to Noura’s testimony:[1], At the age of 15 or 16, Noura ran away from her town to save herself from being forced into an arranged marriage to a man without her consent. After fleeing her home, Noura sought refuge at her aunt’s place in Sennar State and continued her education until she finished secondary school.

In early 2017, her family convinced her to come back saying that the man was no longer interested in marrying her. When she returned to her family in Al Bagir town she found that the family was holding the wedding ceremony against her will and without her own approval. Her family – at the time – signed the marital contract.

After completion of the wedding ceremony, the husband took Noura to an apartment in Omdurman city of greater Khartoum state, located in Al Mohandesin neighborhood, where he persistently demanded his “marital right” to have sex. Noura resisted any sexual relations with the man for four days, after which on day five he brought about four male relatives into the furnished apartment. The men violently held Noura down to the bed while she was forcibly raped by the husband – all the relatives witnessed this act of rape. The incident took place in the last week of April 2017.

Exposed to the traumatic event of the gang rape, Noura defended herself against the ‘husband’ when he approached her again the next day. Again, he demanded sex, upon which she told her assailant not to get closer to her while threatening him with a knife. He nevertheless approached her aggressively, disregarding her condition, and on his turn threatened her by saying: “we will see who dies first”. In the struggle that followed, she stabbed him twice, after which he regrettably died from his wounds. After that, Noura made her way back to her small town, where her father handed her over to the police and disowned her. While Noura spent the last year in Omdurman Women’s Prison awaiting her trial, the family’s house has been burned down as an attack by the in-laws, the relatives of the deceased husband. Noura’s family fled and Noura has not received any family support during her imprisonment.

Victimized by an unjust legal framework and dogmatic traditions: As SIHA, we are aware that Sudan’s legal framework is based on deep misogyny and dogma while Sudan is avoiding looking at the enlightened and progressive laws based on Islamic traditions adopted by predominantly Muslim countries such as: Turkey, Tunisia, Morocco, Egypt and Djibouti and later Saudi Arabia – where they have most recently denounced forced and child marriage. Many more women inside and outside of the urban areas suffer from forced marriage and rape in silence, tacitly or actively supported by their own families. “Noura’s story is not new, or uncommon. The only thing that makes her story extraordinary is that she killed the man who forced himself on her ”

1.Forced marriage and legitimization of rape: Despite the fact that Sudan is a signatory to the convention on the rights of the child, the Sudan Personal Status Law allows girls to be married as of age 10 years old. The Sudanese Personal Status Law emerges as demeaning to the identity of women and girls presenting them as inferior, unable to survive, decide and manage their lives without oversight from men.

The concept of guardianship in Sudanese Personal status Law is one of the greatest restrictions to women’s ability to control their lives and make decisions independently. Under Article 33 of the Personal Status Law, the guardians are: adult men that are Muslim, of sound mind and they do, among other things, decide upon the suitability of a potential husband, meaning that a woman can effectively be married without her consent if her guardian approves. Another element in the law that enables Noura’s victimization is that a woman is not permitted to marry of her own volition, and if she does, her male guardian has the right to cancel the contract.

This is not to mention forced marriages and marriages to minors which are permitted by the Personal Status Law under Article 34, with permission of the girls’ guardians and with her consent. However, this is a clear contravention to the 1989 UN Convention on the Rights of the Child, which was ratified by Sudan in 1990, which forbids marriage under the age of 18 and must thus be addressed seriously. In Noura’s case she was initially about to be married off to the man at the age of 15 or 16, upon which she ran away to her aunt.

2.Blaming the victim and the rooted misogyny of Sudanese legal system: The legal framework of Sudan claims to be based on Islamic Sharia Law, but in practice it relies on the most conservative and militant version of traditional jurisprudence. Even so, although rape was not known to the traditional jurists of the 7th and 12th centuries, it was documented and known that Al Imam Malik – the founder of the Islamic Maliki School of Jurisprudence of the 8th century stated that the rape of a woman regardless of her status is the responsibility and the crime of the male rapist. He specified that the male rapist must be punished and must pay compensation to the woman, and that the victim has no offence nor can she legally be held responsible. In 2015, an amendment of the Sudan Criminal Act took place where the legislator attempted to clarify the rape crime as follows:

“Article 149 outlines and stipulates that “whoever commits the offence of rape shall be punished, by whipping with a hundred lashes, and with imprisonment for a term, not exceeding ten years, unless rape constitutes the offence of adultery, or sodomy, punishable with death”.

Added to Article 151 (gross indecency) is a provision that states that “anyone who commits sexual harassment is anyone who carries out an act or behavior that is a temptation or an invitation for someone else to practice illegitimate sex, or conducts a horrendous or inappropriate behavior with a sexual nature that harms a person, psychologically, or makes them feel unsafe – will be sentenced to a period not more than three years and lashing.”

There is no doubt that Noura has been subjected to an act of rape by a group of men that helped to hold her down, while one was raping her, and she was entitled by the law to defend herself, based on the latest amendment of the Sudan Criminal Act.According to Article 12 of Sudan Criminal Act of 1991: the right of self-defense shall not amount to causing death unless the danger to be obviated may cause death or serious injury or rape or enticement or kidnapping or robbery or criminal mischief of property or public utility by inundation or by fire using burning or explosive, incendiary or poisonous materials. The particular scene of the gang rape proves the severity of violation and crime committed against Noura who was exposed to a threat and was forced to the act of self-defense. However the deeply-rooted misogyny of the Sudanese legal system contributes to turning a blind eye to all the elements around Noura’s situation and the crime of gang rape she experienced. This, in addition to her fear and trauma are clearly speaking to the fact that Noura was exercising her right to defend herself.

The issue of Reprisal (Gasas) in Sudan’s legal system contributing to a widespread practice of corporal punishment.

Noura’s premeditated murder charges and execution is based on the Sudan Criminal Act of 1991. The judge and the prosecutor have resided to the generally easy practice in handling murder cases in Sudan. Sudan’s judiciary typically relies on Reprisal (Gasas) ((قصاص, which involves the decision of the family of the deceased to either forgive and/or ask for compensation (Deia),(دية) or not to forgive and have the accused to be killed as well (Sudan Criminal Act, Article 28).

The concept of Gasas is a problematic ancient method, originally adopted for the limited and simplified realities of the early times. With the complex realities of the 21st century, for Sudan to apply corporal punishment based on the interest of the family and in-laws of the deceased victims alone, poses questions on the whole purpose of having a legal and judiciary system, and having a rule of law in the state. The legal system here simply becomes an executor based on feelings of anger and the desire to commit revenge, which exactly is what happened in the case of Noura. Like other codes in Sudanese laws, Gasas results into extreme violations of human rights, as well as it contributes to paralyzing the debate on thinking within the legal framework: since the whole matter in any murder case is referred to the family of the deceased to decide on the destiny of the accused; the responsibility of the judge is neglected, and ignoring once again the course of events previous to the deceased.

SIHA’s Statement
SIHA believes that both the Sudan Criminal Act and Sudan Personal Status Laws are contributing to the victimization of Noura and deterioration of human rights conditions of women and girls across the country. Having addressed the ambivalence and flaws of the Sudanese laws, SIHA stresses that it is high time for Sudan to fundamentally amend both laws with the purpose to abandon unjustified violations of women’s human rights, and to sign and ratify the Convention of Elimination of all forms of Discrimination Against Women, where Sudan remains among only three countries across the world who have not signed CEDAW.

Noura’s case exemplifies the failure of Sudanese law to provide just and fair treatment for both men and women, by legitimizing forced marriage, gang rape, and additionally denying women their right to self-defense. The way forward:

Noura’s case must be looked at through the principles of self-defense for legal cases, taking into consideration her mental status after her traumatic experience caused by forced marriage and brutal sexual violence that she experienced prior to the act of self-defense;

Although the concept of rape in Article 149 of the Sudan Criminal Act is amended in 2015, it does not actively recognize the concept of marital rape. At the same time, it does not exclude spouses from the definition of rape and the violent sexual act prior to the act of self-defense should therefore be recognized as (gang) rape;

Noura’s life is relying on the attention of international and national activists and advocates who leaked the case to Sudanese and international actors. It is important to bear in mind that Noura is not the only girl whose life is endangered by Sudan’s unjust legal framework. If it wasn’t or the enormous attention, Noura would have been executed already, just like all other similar cases.

COMMENTS

Odwong Dolly Anek

Noura Hussein Hamad acted on self defense and as a woman the pain is deep and God intervention and believe that she will not be sentenced to death. As for myself when I read this article have been moved in pain that can be my daughter, your daughter as we all bare the pain.
Noura Hussein Hamad the truth about SGBV/VAW should be seen in this case.

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SIHA NETWORK

The Strategic Initiative for Women in the Horn of Africa (SIHA) is a network of civil society organizations from Sudan, South Sudan, Somalia, Somaliland, Ethiopia, Eritrea, Djibouti, Uganda, and, most recently, the coastal area of Kenya.